How the Law Commission’s latest review of wills could impact separating families

Making a will is the only way to make sure your money, property, possessions and investments go to the people and causes you care about when you die. 

The law relating to how wills are made - the Wills Act 1837 - is over 185 years old. It was made in the same year Queen Victoria ascended to the throne, the SS Great Britain set sail from Bristol, Lea & Perrins first started selling Worcestershire sauce, and it’s also allegedly the year in which Jack the Ripper was first spotted. It’s an understatement to say there have been huge changes in society, medicine and technology since then.

The Law Commission - an independent body created to keep the laws of England and Wales under review and to recommend reform  - is looking into whether electronic wills should be allowed and whether a marriage or civil partnership should continue to revoke a person’s pre-existing will. These questions are part of a bigger project the Law Commission has been working on aimed at ensuring that the law on making a will  is as modern and straightforward as possible, protects the most vulnerable and gives greater effect to everyone’s last wishes.

What’s the current position

A will is an important legal document which sets out how your money, property and possessions are dealt with following your death and who benefits from your estate. A survey by Canada Life earlier this year suggested that 50% of adults in the UK don’t have a will meaning those adults have no control over the eventual destination of their wealth. If you die without a will, then there are rules – the intestacy rules – that govern who gets your assets.

Does a divorce change your will?

In England and Wales, if you make a will while you're married and then you get divorced, your divorce alters the terms of your will.  Your will still remains valid after your divorce but your ex will no longer be able to benefit from it unless you have expressly said they should.  They will also no longer be able to act as an executor or trustee under your will.  Many people who make a will while they are married will name their husband or wife as a beneficiary, trustee or executor.

So, as anything you have left to your ex is dealt with as if they died on the date you divorced, whatever they were due to inherit from you is passed on to the next beneficiary who is entitled to it, in line with the terms of your will. 

This means that if you have left everything to your ex, with no other beneficiaries named, then your estate will be dealt with as if you had died without a valid will in place at all. This is known as dying intestate. This means the law decides who inherits what from you under the rules of intestacy. The rules of intestacy mean if you die:

• Legally married/civil partnership and no children – your spouse inherits everything
• Legally married/civil partnership and there are children – the first £322,000 goes to your spouse plus they also get all your personal possessions. If your estate is worth more than £322,000, then the rest is split 5:50 between your spouse and your children
• Not legally married and no children – your close blood relatives will inherit and the first in line will be your parents
• Not legally married and there are children – your children will inherit everything

As you can see, the intestacy rules don't always account for modern family relationships. Under the rules, step children and cohabiting partners aren't recognised.  This is why it’s so important to keep your will up to date as your life changes. 

If your will named your ex-spouse as an executor, but it also named other executors, the others will still be able to act. If your will only named your ex as executor, then an alternative executor will be appointed by the court. This will usually be a friend or family member.

We’re still married but have separated.  What happens to my will?

If you and your ex are separated but you are still legally married or in a civil partnership, then your will remains valid and your spouse will be entitled to inherit as set out in the terms of the will.  If you don’t want your spouse to benefit from your estate, but you are not legally divorced, then it’s important to write a new will.

What happens to my will if I remarry?

If you remarry (or indeed just marry for the first time), any existing will you already have (i.e. made before you got married) will be revoked or cancelled altogether, unless you have included specific wording in it about your upcoming marriage. If you have made a will “in contemplation of marriage” and have named the person you intend to marry, your will won’t be revoked when you tie the knot. However, if there is no mention of the intended marriage in your will then it’s automatically cancelled when you get married.

If your will is revoked by marriage and you die without putting a new will in place, then your estate will be dealt with as if you had died intestate. Everything you own will be distributed in line with the rules of intestacy, which will recognise your spouse as your main beneficiary.

What is the Law Commission doing?

Since 2017, the Law Commission has been looking at issues such as:

• electronic wills
• lowering the age of when a will can be made from 18 years to 16 years
• enabling the court to dispense with the formalities for a will – where it’s clear what the deceased wanted
• changing the test for the mental capacity required to make a will to take into account advancements in the understanding of health issues e.g. dementia
• providing statutory guidance for doctors or other professionals conducting an assessment of someone’s mental capacity for the purposes of making a will
• making new rules to protect anyone making a will from being unduly in influenced by another person

They will make recommendations on how the law on wills can be modernised which the government may – or may not – implement.

Wills and predatory marriages

The Law Commission has taken on board serious concerns that have been raised about the impact of someone’s existing will being revoked when they marry or enter into a civil partnership. As explained above, the existing will is cancelled when the marriage takes place.  Without a new will in place, the intestacy rules dictate that the new spouse will be the main beneficiary. 

Making a will either in contemplation of marriage or a new will shortly after the marriage takes place is not always an option though, particularly for the most vulnerable.  And this is when predatory marriage becomes an issue. 

A predatory marriage happens when someone marries a vulnerable adult (for example someone who is elderly or who does not have mental capacity) in order to inherit from their estate. It’s a form of financial abuse and often goes hand in hand with coercive and controlling abuse. Unfortunately, predatory marriage is on the rise, in part due to an increasingly ageing population and a rise in those living with dementia. Campaigners who have investigated predatory marriage have noticed patterns of behaviours that can be described as “grooming” – the predatory spouse looks to alienate the victim from their family and friends and most of the marriages take place in secret.

At the moment, the law provides very little opportunity to reverse a predatory marriage once the victim has died.  There is no way to legally annul a marriage following death, unless the marriage was bigamous or incestuous. It’s also quite difficult to prosecute predatory marriage as a criminal offence and the lack of protection through the courts leaves the vulnerable open to abuse. Following death, the only option available to families to reclaim some of their inheritance is by making a claim under the Inheritance Provision for Family and Dependents Act 1975 and there is no guarantee such a claim would be successful.  

The situation is also very tricky to resolve whilst the victim is alive. Making a new will and or getting a divorce both require the victim to have mental capacity and that’s not always the case.  And even if the victim marries whilst lacking mental capacity and the marriage is subsequently annulled or set aside, the pre-existing will is in the vast majority of cases still revoked. 

Why? Annulling a marriage because someone didn’t give valid consent to get married means the marriage is “voidable”. This is a technical legal term.  It means the marriage was legally valid and existed until the point in time came when someone could successfully prove (by relying on one or more of a specific set of reasons) that the marriage should be set aside.  This is different to a “void” marriage” which is one that was never legally valid and never legally existed (for example, a bigamous marriage is a void marriage). Cancelling or annulling a voidable marriage does not “undo” what was done in the past and whilst the marriage was considered legal.  So, the revoked will stays revoked. 

What might happen?

To be honest, we don’t fully know. The Law Commission needs to better understand how and when predatory marriages occur in order to be able to propose sensible changes to the law. Current ideas include updating the test for mental capacity when making a will and providing a code of practice to guide the courts and professionals as to how a person’s capacity can be assessed. Campaigners argue that the law should be changed so that a marriage does not automatically revoke a pre-existing will and that a marriage should be able to be annulled after a victim’s death on the basis that the marriage has been found to be fraudulent. 

Being aware of the impact divorce or marriage can have on your will is really important, as is an awareness of how the most vulnerable in society could be preyed upon. If you need legal advice on any of the issues discussed in this blog, contact our family and children team.